DCMS minister articulates current govt position on Horizon IT scandal

A fifty-minute Westminster Hall debate took place in the Boothroyd Room at Portcullis House (above) this morning, secured by Darren Jones, the chair of the BEIS select committee. Last year Mr Jones' committee began, then suspended, its investigation into the Horizon scandal.

Mr Jones is concerned about the legal presumption (established in 1999) that a machine is working correctly because it has been or appears to be working correctly. 

This change in the law reversed section 69(1) of the Criminal Evidence Act 1984 which, until its repeal, meant that a computer-derived document couldn’t be used as evidence, unless it could be shown that at all material times the computer was operating properly. 

This change is one of the contributory factors to the scandal. As Mr Jones said: 

"If the Post Office had been required to prove its computer system was operating reliably, it would not have been able to do so, because we now know it wasn’t."

Section 69(1) was repealed because proving that anything with a chip in it was functioning correctly was becoming a massive problem for the courts. Removing the requirement to do so was a catastrophically short-sighted move. As Mr Jones said today:

"If people found it difficult to prove a computer was operating reliably in the early 1990s, we can only imagine how difficult it might be to do that today, with the likes of machine learning algorithms coming to conclusions for reasons even the computer programmer doesn’t understand."

Mr Jones wants the Law Commission to look at this immediately. Such urgency is long overdue. The barrister Stephen Mason (acknowledged by Mr Jones for his assistance) has been pointing out the absurdity (and real danger) of the 1999 legal assumption for almost as long as it has been in place. I first interviewed him on the subject in 2013. 

Darren Jones MP

During the response to Mr Jones' speech, Matt Warman, junior minister at the DCMS, touched at some length on Horizon IT scandal. It serves as a useful note of the government's current position on various matters, including the Historical Shortfall Scheme, the court of appeal hearings, Sir Wyn Williams inquiry, and the issue of financial redress for Subpostmasters. 

Here is what he said on the issue of Horizon in full:

"The government recognises that the Horizon dispute has had a hugely damaging effect on the lives of effected postmasters and their families.

Its repercussions are still being felt today. And over the years, the Horizon accounting system recorded shortfalls in cash in branches, and the Post Office, at the time, believed these shortfalls were caused by postmasters. And this led to dismissals, the recovery of losses, and in some cases, criminal prosecutions.

And I know that many honourable members myself included have listened to the stories of those postmasters who were affected and been deeply moved by the impact on their livelihoods, their finances, and often their health as well. 

A group of 555 of these postmasters led by former postmaster, Alan Bates, brought a group litigation claim against the Post Office in 2017. And it's clear from the findings of Mr. Justice Fraser, just how wrong Post Office was in its relationship with postmasters and that there were clear failings in the Horizon system. 

So as I'll go on to explain the government is taking steps through an independent inquiry to ensure that lessons are learned and a full analysis takes place. The Post Office has reached a full and final settlement with the claimants in the group litigation in December 2019 and apologised for its failings. That settlement was an important step towards addressing the wrongs of the past, but it was only the start of a long journey for the Post Office to repair and to strengthen their relationship with postmasters.

As part of the settlement, the Post Office agreed to set up the Historical Shortfall Scheme and the scheme was open to current and former postmasters who may have experienced and repaid Horizon shortfalls, but did not participate in the group litigation. It's therefore an important step in making sure that all those who were affected have the opportunity to seek resolution.

Matt Warman MP

But there are a number of postmasters with criminal convictions who have applied to the Criminal Cases Review Commission to have their cases referred for appeal. And the commission has referred 51 cases to date to either the court of appeal or the crown court. The government welcomes the decision made by the crown court in December 2020 to overturn six of these convictions. 

However, a number of cases still to be heard in the relevant appeal court will be heard at the end of March - 42 in total. It would not be appropriate for the government to comment on these cases while they're still being considered by the courts, but I can assure honourable members that the Post Office is cooperating with the commission to the fullest extent.

More broadly, we must ensure that a situation like this can never be allowed to occur again. And that's why in September 2020, the government launched the Post Office Horizon IT inquiry, an independent inquiry led by Sir Wyn Williams, and Sir Wyn's inquiry will work to fully understand what happened, to gather available evidence, and ensure lessons have been learned so that this can't occur again.

And it will look specifically at whether the Historical Shortfall Scheme is being properly delivered and the government looks forward to receiving that report in the summer."

On the issue of referring the 1999 rule about IT to the Law Commission, Mr Warman said he would look at Mr Jones' suggestion, but hinted it was unlikely. He did, however say that after the forthcoming court of appeal hearing: "the judiciary criminal procedure rule committee could consider making changes... [and] I look forward to taking the matter up with the Ministry of Justice and the Lord Chief Justice."

You can watch the full debate on parliament.tv here.

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I am currently running a crowdfunding campaign to ensure I can attend all relevant appeal court, high court and government inquiry hearings related to the Post Office Horizon IT scandal. Reward levels include access to the secret email, and a forthcoming book. Please click here for more information, and if you would like to support my work.

"A central issue is likely to be who in the Post Office knew what when"

The thought expressed by Lord Justice Holroyde in the title to this post at the Court of Appeal on 17 December 2020, could have a huge bearing on whether we will get any closer to understanding the Post Office's behaviour in prosecuting so many people using Horizon IT evidence.

Evidence from the Post Office's Horizon IT system was used in around 900 prosecutions between 1999 and 2013. Last year, 41 people were referred to the Court of Appeal by the Criminal Cases Review Commission. The CCRC contended their convictions were unsafe because the Post Office had engaged in abuse of process through (category 1) lack of disclosure and (category 2) prosecuting people who should never have been prosecuted in the first place. This latter misdemeanor is known as "an affront to the public conscience" and is very serious.

Fully exposed

With four Subpostmasters, the Post Office accepted both category 1 and 2 abuse of process had taken place, including in the case of Noel Thomas, one of the founders of the Justice for Subpostmasters Alliance, who spent his 60th birthday in prison. 

For the remainder, the Post Office did not accept the category 2 argument. These cases included Seema Misra, Tracy Felstead and Janet Skinner, (who, like Noel, had all been given prison sentences). In three of the 41 cases the Post Office is contesting both categories.

Noel Thomas

For all the Subpostmaster cases where the Post Office is not contesting category 1, the quashing of these convictions at the Court of Appeal at the end of this month is likely a formality. 

But Seema, Tracy and Janet felt this would allow the Post Office to get away with a far more serious charge - that the Post Office's investigators and prosecution team took people to court knowing the evidence they had against them was flawed to the point of being unreliable. 

And so they approached the Court of Appeal seeking to have both categories of abuse against the Post Office made out. 

As their QC, Lisa Busch, said in court:

"for us it's not merely a question of unsafe convictions; it's a matter of prosecutions that should never have been brought."

Some other Subpostmasters were concerned that arguing category 2 could add delay and expense to a process which had lasted long enough already. Some took the view that the primary goal was getting their convictions quashed, and fighting over the reason behind their prosecutions would be a waste of time, especially as it could slow down the process of seeking compensation in the civil courts. 

Seema, Tracy and Janet felt differently. They wanted the Post Office's behaviour fully exposed, feeling that (if they won) it could bolster their claims for compensation and help the Subpostmasters coming after them.

The risk was if they lost the second category argument, it could reduce the scale of civil compensation claims and make things harder for those coming through. As I reported back in October this caused some degree of consternation. 

(l-r) Janet, Tracy and Seema

The Court of Appeal hearing on 17 December was to decide if any of the appellants:

a)  had the right to fight for category 2 abuse if the Post Office's concession on category 1 made quashing their convictions a formality and,

b) if they didn't have the right, should the court allow them to argue it anyway?

Early on in the hearing it became clear the appellants had no right in law to argue category 2, so it was a decision for the court.

As you will see from the transcript below, the representatives of the other 31 Subpostmasters took various stances on their clients' claim to argue category 2. A couple were with the Post Office, saying it was unnecessary. Others sat on the fence, saying that if the court was going to allow it, their clients would like the opportunity of arguing it. Other representatives articulated nuanced variations on those positions. It is interesting to note that the Attorney General has now got involved, and sent a QC (Mr Mably) to advise the court.

No documents. No dice.

From a public-interest perspective, considering "who in the Post Office knew what when" is hugely important. So far, no one from the Post Office has volunteered an explanation.

We don't know why decisions were taken to prosecute certain Subpostmasters, why they hushed up the Clarke Advice, or the results of the CK Sift Review. 

Sir Wyn Williams' inquiry into the Post Office Horizon scandal cannot compel anyone to explain anything, nor order the disclosure of documents which may shed light on the matter. An open court process is currently the best chance anyone has of getting this information into the public domain.

But I'm not holding my breath. As documented here, the court had already refused to disclose the Clarke Advice to me on 3 Dec. On 17 Dec, as you will see from the transcript, Tom Witherow from the Daily Mail had a go. I also made a verbal request to the court to have sight of all the parties skeleton arguments for the hearing, a formality in every other court case I have attended.

The court refused Mr Witherow's request, even though the Post Office said it had no objection to me or Mr Witherow seeing the Clarke Advice. The judges then went one further by refusing to order I should have access to the parties' skeleton arguments, despite there being no objection from any of the parties involved. 

This meant that none of the parties supplied me with their skeleton arguments. After the hearing I pointed out to the parties via email that the court had not ordered that I shouldn't see their skeletons, just that it wasn't going to order that I should. No dice. 

I then went back to the court, asking it to make clear it had no objection to me receiving the skeleton arguments if the parties were willing to hand them over (which I understood most of them were, with clarification from the court). The court declined. 

The net effect was that I was not given sight of the parties skeleton arguments, which I think goes against established precedent and open justice. 

At the end of the 17 Dec hearing the judges decided they would allow any Subpostmaster who wanted to the chance to argue category 2 abuse. The ruling can be read here as it doesn't form any part of the transcript below. 

I would give the transcript your time, though, as it is a fascinating piece of legal argument, taking in the cases under discussion, wider points about the interests and administration of justice and the public interest in trying to report it. 

Lisa Busch made persuasive arguments on behalf of Seema, Tracy and Janet. We'll find out whether anything more about "who knew what when" will come to light when the full hearing begins on 22 March.

I am grateful to the Post Office for agreeing to supply me with transcripts for all the Court of Appeal and Southwark Crown Court appeal hearings.

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I am currently running a crowdfunding campaign to ensure I can attend all relevant appeal court, high court and government inquiry hearings related to the Post Office Horizon IT scandal. Reward levels include access to the secret email, and a forthcoming book. Please click here for more information, if you would like to support my work.

Transcript: Court of Appeal... by Nick Wallis

Press release: book deal

 PRESS RELEASE FOR IMMEDIATE RELEASE

26 FEBRUARY 2021

Nick Wallis and Bath Publishing to publish definitive 

account of Post Office Horizon IT Scandal

Journalist Nick Wallis has teamed up with Bath Publishing to publish the definitive account of the Post Office Horizon IT scandal.

The decades-long affair has been described in the House of Commons as "one of the worst disasters in public life since the contaminated blood scandal" which "may well be the largest miscarriage of justice in our history.”

Nick has been following the story for more than ten years, fronting BBC investigations for Inside Out, The One Show and Panorama as well as being supported by crowdfunding. Nick also co-wrote the 2020 Private Eye Special Justice Lost in the Post and presented the double award-nominated ten-part BBC Radio 4 series The Great Post Office Trial.

The book’s working title is The Great Post Office Scandal. It is scheduled for publication in Autumn this year.

Helen Lacey, Editorial Director of Bath Publishing said:

“I am delighted Nick has chosen us to help publicise one of the biggest scandals to hit our shores. The story is, quite frankly, shocking and the main reason why it is now being brought to the attention of the public is because of the hard graft put in by Nick.”

Nick Wallis said:

“Bath Publishing’s enthusiasm and determination to produce the definitive account of the Post Office Horizon IT scandal has been inspiring. Hundreds of Subpostmasters had their lives ruined and livelihoods taken away by institutions they should have been able to trust. This book will tell the whole story.”

David Chaplin, Publishing Director of Bath Publishing said:

“I have spent years publishing books that help lay people through the maze of the courts. When Nick raised the idea of working together I jumped at the chance. Although, as the reader will find out, the challenges faced by the Subpostmasters caught up in this scandal are of a different order altogether.“ 

Today Nick launched another crowdfunding campaign (his first was 200% funded within ten days) on his website www.postofficetrial.com to support his work covering the Court of Appeal process, the government’s ongoing Post Office Horizon IT inquiry and the Justice For Subpostmasters Alliance complaint to the Parliamentary Ombudsman.

For more information, interview requests or pics:

Nick Wallis - 07976 432174 or nick@nickwallis.com

David Chaplin at Bath Publishing - 01225 577810 or david.chaplin@bathpublishing.co.uk 

Editors note:

The Post Office Horizon IT scandal began at the turn of the century when the Post Office network was automated. A novel PFI-funded IT system called Horizon was rolled-out into the Post Office network. At the time, suppliers Fujitsu described it as the “largest non-military IT system in Europe”. Horizon didn’t work properly, and errors and discrepancies appeared in hundreds of Subpostmasters’ accounts. 

The Post Office held Subpostmasters liable for these discrepancies. Thousands were forced to pay the Post Office sums they didn’t owe, many were sacked. Some 800 people were prosecuted by the Post Office and many were sent to prison. 

In 2019, after a three year multimillion-pound legal battle, in which the Post Office was supported by the government, the Post Office admitted defeat and settled out of court. Dozens of criminal convictions are due to be overturned at the Court of Appeal in March. There have been suicides, mental health breakdowns and hundreds of family tragedies. No one has been held responsible for the false prosecutions. 

About Bath Publishing:

Bath Publishing was set up nearly 20 years ago. Their first book was The Family Court without a Lawyer: A handbook for litigants in person written by Lucy Reed, barrister at St John's Chambers in Bristol. Bath Publishing have continued to commission other books aimed at the non-lawyer, for those needing help at the most critical stages of their lives, whether they are divorcing, have just lost their job or are supporting an incapacitous member of their family. 

They believe everyone should have access to justice. It's not just about money - it's about transparency of the court system and the legal profession as a whole. Their slogan is Making Law Make Sense. There's more information about their range of titles at bathpublishing.com

About Nick Wallis:

Nick is a BBC-trained journalist who first came across this story in November 2010 when he was a breakfast show presenter at BBC Surrey. A cab driver told him his pregnant wife, a Subpostmaster, had been sent to prison for a crime she didn’t commit. Nick presented his first investigation on BBC Surrey in Feb 2011 and has been following the scandal ever since.

Crowdfunder 2: Special Incentives

UPDATE: This crowdfunding campaign is now closed. Thank you to everyone who has contributed. If you would like to read an update and/or buy my forthcoming book and get on the still active mailing list - click here. All the links below remain active.

ORIGINAL POST FOLLOWS:

In 2018 I tentatively launched a crowdfunding campaign to see if there was enough interest in this story to fund my presence at the first Bates v Post Office High Court trial. My target was £3000. Within ten days I had been entrusted with more than £6000. The money allowed me to sit through every day of that first trial. 

Since that initial crowdfunding campaign I have maintained a virtual tip jar. Without the contributions I would not have had the time to find the documents and make the contacts which led to last year's Panorama, File on 4, the Radio 4 series and the Private Eye Special. So - thank you.

Now I am launching another short crowdfunding campaign. I would like your support to allow me to cover the week long hearing at the Court of Appeal from 22 - 26 March, the government's Post Office Horizon IT Inquiry and the activities of the Justice for Subpostmasters Alliance in their continuing quest for accountability and redress.

The reason this is slightly different from my first campaign is that there is another incentive on offer. As well as posting on this blog, live-tweeting from court and sending out regular secret emails, I am delighted to tell you there will be an option to get a book in return for your kind donations.

On Wednesday I signed a deal with Bath Publishing to write The Great Post Office Scandal - the story of the entire Horizon debacle from the mid nineties to the present day. It will be the definitive account, told in a (hopefully) page-turning style.

If you can afford to donate £25 you can join the secret emailers, support public interest journalism and get an ebook. If you can afford to donate £40, you can join the secret emailers, support public interest journalism and get a signed hardback book, with free UK shipping. 

If you can't afford these sums there are options to donate less. If you don't want to donate anything and just want to get your hands on the book/ebook, wait until April/May. Then both formats will become available at their full price of £25 (+ £3.50 UK shipping) or £8.99 for the ebook.

So many people have been so generous in the past, I realise there are only so many times you can go to the well. But if you have been thinking about donating, or have actually been waiting for a formal campaign, or just fancy a book and don't mind chucking one final donation into the tin, believe me I would be very grateful. 

You might actually be able to make a donation directly from this webpage via the donation options below. If you can't see it, this link should take you there.

How much did the Post Office and the government know about Horizon pre-launch?

A bag of s***, about to wreak havoc

On Friday 19 February, I got a piece away in Computer Weekly featuring an interview with a man who says he was a development manager working on Horizon in the months before and after its rollout. 

His educated opinion was that Horizon was "a bag of s***."

Specifically, he says Horizon’s Electronic Point of Sale [EPOS] system (ie the bit that sat in the branches used by Subpostmasters) was initially built with “no design documents, no test documents, no peer reviews, no code reviews, no coding standards”.

He concluded: "It was a prototype that had been bloated and hacked together afterwards for several years, and then pushed screaming and kicking out of the door. It should never have seen the light of day. Never."

Yet it was rolled out, into 18,000 Post Offices across the country, where it wreaked havoc. Our source says he told his bosses at Fujitsu, unequivocally, that part of the system did not work, and would not work unless it was rebuilt from scratch. He says his bosses did not want to know.

More clues

On publication of the Computer Weekly piece, I was struck by a couple of responses. One came from Eleanor Shaikh, who has done a fantastic job of digging into public documents to aid the Subpostmasters' cause. Eleanor drew my (and twitter's) attention to the fact that Alan Johnson, then Minister for Competitiveness at the DTI, chaired something called the Horizon Working Group in 1999. This was attended by the Post Office, the National Federation of Subpostmasters and the Communications Workers Union.

Eleanor got this information from an appendix to a document published by the Trade and Industry Select Committee in November 1999. In it, the committee expresses concern about Horizon's rollout, noting:

"the failure to meet the first milestone cannot but cause concern in a project with such a chequered history."

You can find the appendix here. Unfortunately, the link to the main document, snappily titled:

"GOVERNMENT OBSERVATIONS ON THE ELEVENTH AND TWELFTH REPORTS FROM THE COMMITTEE (SESSION 1998-99) ON THE HORIZON PROJECT FOR AUTOMATED PAYMENT OF BENEFITS THROUGH POST OFFICES (HC 530) AND THE 1999 POST OFFICE WHITE PAPER (HC 94)"

... does not work. I will try to get hold of the document by other means.

The second notable response came from a secret emailer who pointed me in the direction of Duncan Campbell-Smith's excellent book Masters of the Post. 

Richard Brooks and I bought this book as part of our research for the Private Eye Special Report we produced last year. Richard used a line from Duncan's book which noted that in September 1999 the Post Office board had "serious doubts over the reliability" of Horizon's software. 

Horizon was rolled out in late 1999. If the Post Office board had serious doubts as late as Sep 1999, and in November 1999 the government tells a select committee that a minister is chairing a working group to ensure the project stays on track - what information were they looking at?

I emailed Duncan (who I've had the pleasure of dealing with before) to ask if he still had a copy of the Post Office board minutes he quoted from in his book. Duncan did not have the document in his possession. He had in fact taken down the quote whilst perusing board minutes held at the British Postal Museum and Archive, currently closed due to lockdown. But he was kind enough to give me what information he had, stating in his reply:

"I have gone back to my notebooks to check on the background to that sentence from p. 666 of my book. Not a lot to add, I fear, but here's the entry in my notes:

Minutes 1999/No.90, 14 Sept: Horizon -- contract signed with ICL in July.

'Acceptance' of the system was supposed to happen on 18 August.

'Unfortunately, three high priority acceptance incidents [sic] … remained unresolved and … resulted in Acceptance being deferred until 24 September'.

But rectification not expected before December!

Latest acceptance date: 15 November. So, another cliff-hanger … (No payments made to ICL until acceptance.)

Board discussion. Note made of fact that 'serious doubts over the reliability of the software remained'.

In subsequent entries in my notebooks, I find these three minutes:

Minutes 1999/No. 109, 26 October: Horizon now accepted. 200 offices/wk being converted.

Minutes 1999/No. 111, 26 October Financial overview: Horizon write-off leading to 420m loss after tax for PO.

Minutes 1999/No. 123, 30 November: Unaudited half-year results - exceptional charge of 571 on Horizon. PO and Ernst & Young had clashed over treatment of this charge. Audit C'tee decided PO had adopted the right approach."

Looking at the above, the questions remain: what on earth happened between the "serious doubts" of 14 September and the decision to accept Horizon into the network on 26 October? Who told the Post Office board what? And what persuaded the board the information was valid?

On 10 June last year, in a debate in the House of Lords, there was a discussion about who should chair the government inquiry into the Post Office Horizon debacle. Lord Mann suggested the following to the government:

"Being experienced, knowledgeable and of impeccable character, and having no vested interest, were seen to be the appropriate qualities required for the person to chair this inquiry. Can the Minister think of anyone better suited than the former postman Alan Johnson?"

It might be that the public interest would be better served if Sir Wyn Williams asked Mr Johnson to be a witness instead.

I am deeply grateful to Duncan Campbell-Smith for digging out his notes and allowing me to share them with you. He is a brilliant writer and I do recommend his book. If you want to join the secret emailers, information on how to do so is below. It's basically just an irregular newsletter, but if you're at all interested in this story, it might be worth your while!

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This website is entirely funded by donation. You can contribute any amount through the tip jar via a secure payment portal I have set up for the purpose (click here for more info or to donate).

If you are able to give £20 or more you will be added to the secret email list. This alerts you to upcoming developments on this scandal before they are made public, as well as links to articles and stories posted here on this blog or elsewhere.

"They turned my dream into a nightmare."

Shann Rodgers, Subpostmaster at Goldsithney, Cornwall

I have finally got round to watching and reading the transcript of the first (and so far only) focus group session to be posted up on the Post Office Horizon IT inquiry website. It happened in January.

Oral testimony can sometimes be more powerful than the written word. It can also be surprising. Anyone who has taken part in a job interview or panel discussion will know the answers you give to questions can develop on the hoof into new ideas or novel expressions of existing ideas over the course of a sentence or two. Even if you start off pretty clear on what you want, your thoughts can change direction as they try to clamber over the language formulating in your brain, in real time. 

In a loosely-structured three hour discussion, the contributors at this session were given free rein to visit and revisit various themes, and it was fascinating to watch. Two of the three contributors are well known to me, Pete Murray and Mark Baker.

Mark Baker

Mark I have met many times. For years he has been doing tireless work defending Subpostmasters from the Post Office. He has never been a victim of Horizon, but through his work as the National Secretary for the Communications Workers Union Postmaster's Branch, he has clearly dealt with cases of such appalling mismanagement they would make your skin crawl.

You can read a piece Mark wrote for me back in January 2019, well before the Post Office announced it had changed its spots, and just after it had fought a court case during which it asserted its contractual right to treat Subpostmasters "arbitrarily, irrationally or capriciously". 

For years Mark was one of the only people in the country actively working on a daily basis to stop Subpostmasters being suspended, or trying to get them reinstated, or point out to the Post Office that it was abusing its (already draconian) powers. 

Mark used to be a bit of a cheese at the National Federation of Subpostmasters, but left when the NFSP would not be persuaded that siding with the Post Office over Horizon was destroying its members livelihoods and lives. He joined the CWU but has never been paid for his work. I have heard more than one Subpostmaster say Mark has literally saved their lives by intervening at their very lowest moment, when no one else seemed interested or able. During the inquiry session Mark spoke of the guilt he felt about not being able to help everybody, telling Sir Wyn:

"I do have this sense of being on a rescue boat and I've grabbed someone’s hand, who was drowning in the water and I've tried to get them on the boat to save them and they've slipped away. That is a recurring thought that goes through my mind."

Pete Murray

Pete Murray's story was covered in a four part epic on this website. Pete took over Hope Farm Road Post Office after the previous incumbent took his own life. The Post Office did not tell him about the branch's past. The Horizon problems which led to Martin Griffiths' suicide continued for Pete. Just as Mr Griffiths was blamed, Pete was also blamed and suspended in 2018 without pay (in both his branches). 

He has since suffered a stroke and multiple breakdowns, as well as losing goodness knows how many tens of thousands of pounds in lost income and forced repayments under the threat of legal action. In the oral session Pete describes his experience of being nearly ruined by the Post Office:

"It's left me completely devastated. It's caused absolute havoc in my family. I feel alienated from my children. I've had several nervous breakdowns... the last three Christmases have been destroyed by breakdowns.... Falling into tears at the drop of a hat over nothing... I feel ashamed, even though I still know that I've done nothing wrong...  I've now had it confirmed that I'm suffering from PTSD, which has been a great weight off my shoulders, 'cause I've shared that information with my kids. I feel like they understand a bit more."

Shann Rodgers

The third contributor was Shann Rodgers, Subpostmaster at Goldsithney Post Office in Cornwall. Shann is an extraordinary individual and an example of someone who, like Pete, has refused to be broken by her experience. She's a tough cookie, too. According to the BBC News website she once chased a knife-wielding robber out of her branch!

After 17 years working for Post Office HQ, Shann was bored. Newly divorced, she moved 300 miles west with her 9yo daughter, to start over as a Subpostmaster in the tiny village of Goldsithney. 

Shann's "bubbly" personality made her a natural pillar of the community and she was quickly welcomed into the village. Life was good until Horizon started playing up. Despite regular "blue screen of death" crashes, she was told she was the only one having problems with the system, and she was held responsible for inexplicable Horizon discrepancies. Repayment threats meant that at one stage Shann ended up having to cash in a savings account she had set up for her daughter's first year at University.

During the oral evidence session Shann told Sir Wyn Williams that despite the fact she feels unable to give up her job because the village depends on her, she "dreads" going into Post Office. Without her, the branch would close - no one would take it on as a business, as it is no longer a going concern. And as for her employers:

"I hate the Post Office. I hate them... This was our dream and they turned my dream into a nightmare."

The Williams inquiry is accepting evidence from anyone and everyone until 23 February.

You can read the full transcript of the three hour session here. You can watch it here.

Read Mark Baker's story for this website: ""Be careful", he said to me as he left."

Read the first of Pete Murray's pieces for this website here: "The Post Office claim I owe them £35,000, despite never showing or telling me what I have done wrong."

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This website is entirely funded by donation. You can contribute any amount through the tip jar via a secure payment portal I have set up for the purpose (click here for more info or to donate).

If you are able to give £20 or more you will be added to the secret email list. This alerts you to upcoming developments on this scandal before they are made public, as well as links to articles and stories posted here on this blog or elsewhere.

Ruling allowing Subpostmaster appellants leave to plead both limbs of the CCRC's Abuse of Process argument

In all but four of the 41 Subpostmaster cases referred by the Criminal Cases Review Commission, the Post Office said it would contest the second limb of the CCRC's Abuse of Process argument. In three cases, the Post Office said it would contest the appeal in its entirety.

This led to a split between the lawyers representing the remaining 38 appellants, first reported back in October. One group wanted to forget the second limb and get their clients' convictions quashed on the uncontested first limb. The other, smaller group, wanted the right to have their conviction recognised as an Affront to the Public Conscience, the basis of the second limb of the referral.

A hearing was held at the Court of Appeal on 17 December 2020. After hearing all the arguments, the three judges, led by Lord Justice Holroyde decided that all the appellant Subpostmasters could contest their convictions on both limbs, if they wanted to. Seema Misra's case, deemed to have circumstances where the Abuse of Process may be particularly acute, will go to the front of the queue and have her case considered first when the hearings begin on 22 March 2021. Next month!

Please see the full ruling below, which was handed down on 15 January. You can also read it here on the bailii website.

R v Hamilton Court of Appea... by Nick Wallis

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This website is entirely funded by donation. You can contribute any amount through the tip jar via a secure payment portal I have set up for the purpose (click here for more info or to donate).

If you are able to give £20 or more you will be added to the secret email list. This alerts you to upcoming developments on this scandal before they are made public, as well as links to articles and stories posted here on this blog or elsewhere.

CCRC letter to the Court of Appeal about the Clarke Advice

The Clarke Advice, described by Lord Falconer as a likely "smoking gun" in the Post Office Horizon scandal, lay undisclosed by the Post Office for more than seven years. It was written in July 2013. 

In it, the barrister Simon Clarke noted that evidence given during the prosecution of Subpostmasters by the Fujitsu engineer Gareth Jenkins was not the complete picture. Mr Jenkins is currently under investigation by the Metropolitan Police.

The Post Office sat on this document until 12 November 2020. 

In response to a query raised by the legal team working for Tracy Felstead, Janet Skinner and Seema Misra, the Clarke Advice was handed over to all the current appellants' legal teams. The contents of the Clarke Advice were sent to the Metropolitan Police by the barrister Paul Marshall and the barrister Flora Page sent it to a journalist.

The Post Office became aware of Ms Page's actions and raised them in court on 18 November 2020. As a consequence of this, the Metropolitan Police alerted the court to its receipt of the document on 19 November and destroyed it.

The same day in court Mr Marshall expressed his concern that the Criminal Cases Review Commission might not have seen Clarke Advice, basing that concern on the lack of any reference to it in the CCRC's Statement of Reasons, which led to the appeal proceedings we had all gathered to witness.

Shortly afterward the Sally Berlin, Director of Casework Operations at the CCRC sent the letter below to the Court of Appeal stating:

"We take the view that the contents of the Clarke advice are of potential relevance to ongoing CCRC reviews of Post Office cases. For that reason we have today written to Post Office Limited (‘POL’) - via their criminal law representatives, Peters and Peters Solicitors LLP - enclosing a statutory notice, issued under S17 Criminal Appeal Act 1995, formally requiring POL to provide us with the Clarke Advice. For the avoidance of any doubt, we also consider that the advice was of potential relevance to Post Office cases which have already been referred to the Court of Appeal."

and:

"as the Court will be aware, the Metropolitan Police Service is currently conducting a criminal investigation into allegations of perjury and perverting the course of justice in respect of particular expert witnesses, one of whom is the subject of the Clarke advice. We understand that the parties may wish to consider whether the Clarke advice – either in whole or in part - ought to be disclosed to the MPS investigation team. You may already have that in hand."

In her letter below, Ms Berlin states she wasn't sure if the CCRC had been disclosed the Clarke Advice in its five years of looking into Subpostmaster cases. It has subsequently been confirmed that the Post Office did not disclose the Advice, though it had given the CCRC the Altman review, which apparently refers extensively to the Clarke Advice.

I made a written application to the Court of Appeal to be disclosed the Clarke Advice, and even though the Post Office didn't seem that bothered in its written response, the Court of Appeal denied it to me. You can read the Court's reasoning and some commentary on that reasoning here.

The full letter from the CCRC follows...

CCRC Letter Re Clarke Advice Redacted by Nick Wallis on Scribd

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Court of Appeal ruling on possible contempt by Flora Page and Paul Marshall

As well as telling me I couldn't have the Clarke Advice, on 3 Dec 2020, the Court of Appeal was also busy trying to decide whether or not Flora Page or Paul Marshall had been in contempt of court by disclosing the Clarke Advice to a journalist and the police.

At the end of the day it made an order requiring another constitution to deal with it and then, last week, it released a ruling stating that the proceedings of 18/19 November and those of 3 Dec were not, of themselves, contempt proceedings. 

There are two careers hanging in the balance here, so I don't want to be flippant, but if they weren't contempt proceedings, what were they? The answer to this question might have a bearing on the progression of this situation, which, let's not forget, has cost three Subpostmasters their chosen representatives in court.

Here is the full ruling:

Court of Appeal ruling on Clarke Advice contempt by Nick Wallis on Scribd

Court of Appeal Ruling re access to the Clarke Advice

Late last year I made an application to the Court of Appeal to receive the Clarke Advice, described by Lord Falconer as a likely "smoking gun" in the Post Office scandal. 

Brian Altman, QC for the Post Office in the current Court of Appeal proceedings, told the court the Clarke Advice revealed that:

"Mr Gareth Jenkins, an expert witness [for the Post Office] in many of the prosecutions may have failed to disclose information, that he was well aware of, that Horizon has bugs and errors in it.”

The significance of this document was such that when the legal team representing Seema Misra, Tracy Felstead and Janet Skinner received it from the Post Office, one barrister (Flora Page) sent it to a journalist and another (Paul Marshall) sent it to the Metropolitan Police, which is currently investigating two Fujitsu engineers (including Gareth Jenkins) over their role in the scandal.

The Post Office took exception to Ms Page's actions, which set in motion a chain of events, leading to both barristers stepping down from representing their clients. Mr Marshall has written to both Lord Justice Holroyde (who is presiding over this appeal case) and the Lord Chief Justice over the matter.

No gun jumping

My application to see and report on the plainly important contents of the Clarke Advice was refused by the Court of Appeal on 3 December, but I only got the full approved written ruling telling me why this week.

The whole document can be found below, but the key paragraph is:

"In our judgment, neither a need to mention a document in order to raise a concern as to the possible impropriety of its being given to a press representative, nor a reference to a document in submissions to which its contents are not relevant, can be regarded as a reference to the document sufficient to necessitate its provision to a journalist or any other person with an interest in the case.  It would, in our view, be contrary to the proper conduct of proceedings if that consequence could be achieved by a party who had received disclosure of the document simply making it available to a journalist, especially when that is done in advance of a hearing on the basis that the party concerned will refer to the document at the hearing, and all the more so when the document in question has no relevance to the issues to be discussed at the hearing."

therefore:

"there is at present no basis for granting Mr Wallis' application for access to a copy of the Clarke Advice.  The principles governing the provision of documents to journalists and to other persons who have a legitimate interest in proceedings, but who are not parties, do not at present require or permit the release of the Clarke Advice to Mr Wallis.  We emphasise the words at present.  The position may change as these appeals progress.  We emphasise that our decision today necessarily relates to the situation as it presently stands.  The court is not however prepared to allow anyone to jump the gun."

I asked Mr Marshall to give me his view on this ruling, and I also approached Mark Hanna for his view. Mr Hanna is co-editor of McNae's Essential Law for Journalists. He told me:

"The Court's ruling in respect of the Clarke Advice gives hope that this document will be released to the media later in the appeal proceedings, when the relevance of the document's contents becomes, as regards the reporting of what is said in court, beyond dispute. 

But the ruling is disappointing, because in it the Appeal Court judges seem to view the concept of open justice as relating strictly to the reporting of the particular proceedings. But there is case law that the societal benefits of open justice include revelation of matters raised in court but beyond the scope of the issues in that particular hearing. The Appeal Court ruling does not set out clearly what risk of harm exists from allowing the Clarke Advice document to be fully reported now."

Mr Marshall wrote to say:

"Underlying the reasoning in the court’s ruling of 3 December are two a priori assumptions, unexamined and unargued.  

First, once disclosed to the appellants, the appellants are restricted in the use they can make of the “Clarke Advice”.  

The Post Office asserted (but did not establish) that the document is covered by an implied undertaking as a matter of law.  But the Clarke Advice is a document that tends to cast doubt on the safety of convictions of the appellants (that’s why it was disclosed). It is disclosed by the Post Office as prosecuting authority, post-conviction, not a private litigant. That is entirely different from the usual circumstance in which a party to, say, civil litigation gives disclosure of its private documents which they are entitled ordinarily, as of right, to keep to themselves. 

In civil litigation there is an implied undertaking of the kind identified by the House of Lords in Harman v Secretary of State for the Home Department (now codified under the rules of civil procedure). The quid pro quo is that as a consequence of being involved in litigation the documents disclosed under compulsion are protected in the use to which they may be put. That has no application whatever to the present appeals. 

There is no similar countervailing right of a prosecuting authority to withhold documents that cast doubt on a conviction.  

The second assumption (asserted but not established) is that the document was covered by legal privilege. 

But the assertion of privilege in the Clarke Advice would have been a ground for it not being disclosed to the appellants at all. Not only was the document disclosed, which ordinarily results in loss of privilege, but the terms of disclosure expressly provided that documents that met the criteria for disclosure would be disclosed even if privilege might otherwise have attached – a provision that is not referred to in the court’s judgment.

The question remains, had the Clarke Advice been disclosed to appellants before these appeals as a document that cast doubt on the safety of their convictions, on what possible basis could it have been said that the appellants would have been inhibited from going to the press about it? The Post Office could scarcely have been heard to say ‘we’ll let you have this document that casts, or may throw, doubt upon the safety of your convictions - so long as you don’t tell anyone about it and only if you use it for an appeal’.   

Any such restriction would likely have engaged rights guaranteed under Article 10 of the ECHR. In short, the judgment, unsatisfactorily, raises more questions than it answers.  Further, assumptions of the kind made are a questionable basis for displacing the principle of open justice identified in Cape Intermediate Holdings."

I hope the contents of the Clarke Advice, and both the CK Sift Review and the Altman Review which it spawned (see my oral submission to the Court for more on that) are made public sooner rather than later. Furthermore, I hope the decisions that were made by the Post Office and the government in the light of the information those documents contained are also fully exposed.

The full ruling is embedded below or can be read here on Scrib'd:

Court of Appeal ruling on Clarke Advice application by the media by Nick Wallis on Scribd

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Another four referrals by the CCRC

Four more former Subpostmasters have been referred back to the courts by the Criminal Cases Review Commission.

They are:

Roger Allen,  who pleaded guilty to theft at Norwich Crown Court  on 7 April 2004. He  was  sentenced to six months imprisonment.

Pamela Lock, who  pleaded guilty to false accounting  at Swansea  Crown Court on 1  November 2001. She was sentenced to  80 hours of  unpaid work and ordered to pay £26,071.53 compensation and £500 costs. 

Oyeteju  Adedayo (known to many as Teju), who  pleaded guilty to false accounting at Medway Magistrates’ Court on 19 January 2006. She was sentenced to  50 weeks imprisonment suspended for 24 months with 12 months of supervision and 200 hours of unpaid  work.

Parmod  Kalia, who pleaded guilty to theft at Bromley Magistrates’ Court on 17 December 2001. He was sentenced to six months imprisonment at Croydon Crown Court on 8 March 2002. 

Mr Allen and Mr Lock will likely be rolled into the cohort of appellants who will be heard at the Court of Appeal on 22 March.

Mrs Adedayo and Mr Kalia's cases will be dealt with at Southwark Crown Court (because they were convicted at magistrates' courts, crown courts hear the appeals).

"Unbearable shame"

This brings the total number of Subpostmaster referred by the CCRC to 51. Six of those Subpostmasters have already had their convictions quashed. Of the remaining 2020 referrals the Post Office is contesting three. 

Interestingly, Mr Allen was not prosecuted by the Post Office, but by the Department for Work and Pensions. Nonetheless his prosecution was Horizon-related. 

It means that it is up to the DWP to decide whether or not to contest Mr Allen's appeal. The Post Office tell me that they have served a respondent’s notice for Pamela Lock’s case but as it's not yet in the public domain they are unwilling to provide any more information about it. No decision has yet been communicated to the court about Ms Adedayo or Mr Kalia.

I have spoken to two of the Subpostmasters named above. Neither wished to comment on the record but I got a sense they are relieved to have got this far.

Teju Adedayo has had her story published on her solicitor's website where she spoke about her ordeal at the hands of the Post Office's investigators, saying:

"My parents brought me up to respect the law, work hard and earn a decent honest living. I’ve been completely broken by this, particularly by how this has impacted on my family and the unbearable shame it has brought on us all."

Ms Adedayo is represented by Hudgells, who also represent Parmod Kalia. Today Neil Hudgell, the firm's MD, released a statement saying:

"We are particularly pleased as whilst we have had plenty to celebrate in the past few months, we have been determined to ensure nobody is left behind.

We have 30 clients who have been told their convictions will be quashed, a significant number more at the initial stage of submitting their cases to the CCRC, and a handful still awaiting decisions from them.

We keep going until we’ve overturned the convictions of each and every person wronged as a result of his scandal.”

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Paul Marshall's "resignation" letter to the Court of Appeal

Paul Marshall

On 15 December, Paul Marshall (pictured left) stood down from representing Seema Misra, Tracy Felstead and Janet Skinner at the Court of Appeal.

He faces possible contempt of court charges over passing a document known as the "Clarke Advice" to the police.

I reported Mr Marshall's decision to step down at the time. Now I have the full text of the letter he wrote to the court explaining his decision. It makes for troubling reading. 

In his letter, Mr Marshall states he has been made subject to an order of the court: 

"In proceedings to which I am not a party, in the course of a hearing at which I was not present, in the course of a hearing of which I was given no notice that any issue in connection with my conduct was to be raised... The first notice of which was given to me 4 days after the order was made, where the document founding criticism of my conduct by the court was provided to me 11 days after the hearing, and then only upon my specific request."

Right then

The night before a Court of Appeal hearing on 18 November 2020 Mr Marshall sent the Clarke advice to the Metropolitan Police. His junior, Flora Page, passed it to a journalist.

The next morning, Brian Altman, QC for the Post Office, said the advice (written in 2013) was alleged to contain evidence a senior Fujitsu engineer:

"relied upon in many of the prosecutions [of Subpostmasters] had failed in many cases to disclose information he was well aware of that Horizon had bugs and errors in it."

This goes to the heart of the Post Office scandal, because in Feb 2015 (nearly two years later), the then chief executive of the Post Office, Paula Vennells, told a parliamentary inquiry:

"If there had been any miscarriages of justice, it would have been really important to me and the Post Office that we surfaced those."

As a result of what was said about the Clarke advice in court on 18 November, Lord Arbuthnot told the government it was clear the Post Office had "lied" to parliament in 2015, and the former Lord Chancellor, Lord Falconer, told me it was likely a "smoking gun".

Shortly after the existence of the Clarke advice was made public, Ms Vennells announced she was resigning from her job chairing an NHS Trust.

Nonetheless, the judges took a dim view of the document's disclosure outside Court of Appeal proceedings, and began the process of considering contempt charges against Mr Marshall and Ms Page.

Open justice?

On 26 November I applied to the court to be supplied the Clarke advice on the basis that it was of significant public interest. 

On 3 December, my application was refused. Nearly three weeks later I am still waiting for the approved ruling which explains why.

In his letter of 15 December Paul Marshall tells the Court of Appeal he feels "inhibited from continuing fearlessly to represent my clients before this court." 

I am publishing a redacted version of the letter below. Acting out of an abundance of caution, I am trying to measure the public interest against the Court of Appeal's unwillingness to allow the Clarke advice and its contents to be made public. I hope, by removing references to what the Clarke advice contains beyond that which is already in the public domain, I have struck the right balance.

More importantly, I hope the redacted elements do not detract from the power of Mr Marshall's argument. Something has gone terribly wrong when a barrister feels unable to represent his clients in one of the highest courts in the land.

If you can't see the letter embedded below, click on the link. You may need to sign up to Scrib'd to read it, which is free. 

Paul Marshall letter to the... by Nick Wallis

Earlier this week I told Mr Marshall of my intention to publish his letter and asked if he had anything to say about it. He declined to comment, other than to ask me to make clear that I had not received the letter I am publishing from him.

I asked the court if it had anything to say in response to Mr Marshall's letter. I understand it is not in a position to reply, given it is now the Christmas holidays. 

I asked if Mr Altman had anything to say about Mr Marshall's letter, given the criticisms which are levelled at him. I was told by lawyers acting for the Post Office it would not appropriate for Mr Altman to comment, however:

 "that should not... be taken as an acceptance of anything said in Mr Marshall’s letter". 

On 18 November, Mr Altman said the Post Office only brought their knowledge of the leaking of the Clarke advice to the court:

"because we regard it as our professional duty to ds so.  We also make it clear that the complaint is about the alleged acts of a lawyer or lawyers acting for three of the appellants, not the appellants themselves."

On 17 December, the three appellants in question, Tracy Felstead, Janet Skinner and Seema Misra, won the right to have their prosecutions by the Post Office considered as a possible affront to the public conscience. It's a shame they have been deprived of their legal representatives in doing so.

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If you are able to give £20 or more you will be added to the secret email list. This alerts you to upcoming developments on this scandal before they are made public, as well as links to articles and stories posted here on this blog or elsewhere.